FILED

March 31, 2017

Carla Bender

th

4 District Appellate

Court, IL

NO. 4-16-0449

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) Champaign County

GRANVILLE S. JOHNSON, ) No. 08CF1424

Defendant-Appellant. ) ) Honorable

) John R. Kennedy,

) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Appleton concurred in the judgment and opinion.

OPINION

¶1 In April 2014, defendant, Granville S. Johnson, filed a petition for postconviction

relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2014))

with the assistance of private counsel. In June 2014, the trial court dismissed defendant’s petition

at the first stage of postconviction proceedings.

¶2 In July 2014, defendant’s counsel withdrew his representation, and defendant

filed a timely pro se motion to reconsider, which he later supplemented. Defendant’s motion to

reconsider and its supplement alleged postconviction counsel provided “ineffective” assistance

by failing to raise certain previously requested claims in his postconviction petition.

¶3 In May 2016, the trial court denied defendant’s motion to reconsider and found any new claims raised in his motion to reconsider and its supplement were forfeited as they were

not raised in the original petition. Defendant appeals, arguing the trial court erred by (1) not

considering whether postconviction counsel’s representation was “unreasonable” for failing to

include the additional claims in his postconviction petition and (2) summarily dismissing his

petition because at least one of the claims he would have raised states the gist of a meritorious

claim. We affirm.

¶4 I. BACKGROUND

¶5 In August 2009, a jury found defendant guilty of first degree murder (720 ILCS

5/9-1(a)(1) (West 2008)) and attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West

2008)), and, in November 2009, the trial court sentenced him to consecutive terms of 53 years’

and 32 years’ imprisonment. Defendant’s convictions and sentence were later affirmed on

appeal, and both his petition for leave to appeal to the Illinois Supreme Court and his writ of

certiorari with the United States Supreme Court were denied. People v. Johnson,

(affirming on direct review), appeal denied, No. 115225 (Ill. Jan. 30, 2013);

Johnson v. Illinois,

(2013) (denying petition for a writ of certiorari).

¶6 A. Direct Review

¶7 On appeal from his convictions and sentence, defendant argued, in relevant part,

the trial court erroneously concluded the State exercised due diligence in obtaining

deoxyribonucleic acid (DNA) test results and thus was entitled to an extension of the speedy-trial

deadline under section 103-5(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103­

5(c) (West 2008)). Johnson,

, ¶¶ 2, 18. In support of his argument,

defendant highlighted three examples of a lack of due diligence: (1) the State, despite sending

-2­ other evidence for testing on August 13, 2008, failed to request a DNA standard for comparison

until October 15, 2008; (2) despite obtaining defendant’s sample, the State did not send the

sample to the crime lab until early January 2009; and (3) the State could have avoided any delay

had it checked the Illinois State Police DNA database, which had contained defendant’s DNA

since at least 2005.

. After reviewing the record “as it existed at the time of the [October

20, 2008,] hearing” on the State’s motion for a continuance, we concluded the trial court’s

decision to grant the State a continuance was not an abuse of its discretion.

.

¶8 B. Postconviction Petition

¶9 In April 2014, defendant, through private counsel, filed a postconviction petition,

alleging ineffective assistance of trial counsel for counsel’s failure to file a motion to reconsider

the trial court’s October 20, 2008, order based on newly tendered evidence. Specifically,

defendant alleged, on October 21, 2008, the State tendered supplemental discovery to trial

counsel, which included a September 11, 2008, Illinois State Police lab report. According to the

petition, the lab report stated the lab “was ready to proceed with DNA testing as soon as it

received (1) permission to consume some of the samples in the testing process[,] and (2) a

sample of [defendant’s] DNA.” The State did not file its motion to permit destruction of

evidence necessary to complete forensic testing and motion for an order requiring the submission

of defendant’s biological and hair samples until October 15, 2008. Defendant asserted the State’s

failure to take the steps necessary to complete testing for approximately one month

demonstrated, contrary to the court’s previous decision, it did not act diligently in obtaining the

DNA test results. Defendant argued, had (1) trial counsel filed a motion for the court to

reconsider its prior ruling based on the newly tendered evidence, the trial court may have

-3­ reversed its decision to grant the State a continuance; and (2) the court reversed its prior

decision, the State would have been required to try defendant by November 2008, which might

well have led to the dismissal of the charges for a violation of the speedy-trial statute.

¶ 10 C. First-Stage Dismissal

¶ 11 On June 11, 2014, the trial court summarily dismissed defendant’s postconviction

petition. The court characterized defendant’s petition as raising a claim his trial counsel was

ineffective for failing to file a motion to reconsider the trial court’s ruling granting the State a

continuance to obtain DNA evidence, which, in turn, resulted in a violation of his right to a

speedy trial. The court found defendant was “procedurally barred from asserting [his claim]

under the doctrine of res judicata” as it was an issue “that [was] or could have been raised on

direct appeal” and defendant “allege[d] no new evidence or information that was not or could not

have been a subject of [his] direct appeal.” In addition, the court found defendant’s claim did not

meet the standard set forth in Strickland v. Washington,

(1984). On June 23, 2014,

defendant, through counsel, filed a notice of appeal.

¶ 12 D. Retained Counsel’s Motion to Withdraw Representation

¶ 13 On July 7, 2014, defendant’s counsel filed with this court a motion to withdraw as

counsel and appoint the office of the State Appellate Defender (OSAD) to represent defendant.

¶ 14 E. Pro Se Motion to Reconsider

¶ 15 On July 8, 2014, defendant directed a copy of a pro se motion to reconsider the

dismissal of his postconviction petition be sent to the trial court and the State. Defendant’s

motion was file stamped by the circuit clerk on July 11, 2014.

¶ 16 In his motion to reconsider, defendant alleged, after receiving a copy of his

-4­ postconviction petition, he wrote postconviction counsel to address counsel’s decision to not

raise a claim of ineffective assistance of appellate counsel. Postconviction counsel allegedly

wrote defendant and explained he did not need to do so because counsel on direct appeal argued

about the lab report. Defendant, unsatisfied with postconviction counsel’s response, requested

counsel to supplement the petition with an ineffective assistance of appellate counsel claim.

Defendant did not hear back from counsel until his petition was denied. Defendant asserted

postconviction counsel was “ineffective” for failing to raise an ineffective assistance of appellate

counsel claim.

¶ 17 In addition to the failure to raise an ineffective assistance of appellate counsel

claim relating to the September 11, 2008, lab report, defendant alleged postconviction counsel

was “ineffective” for failing to add other meritorious claims to his petition that he and counsel

agreed would be added. Specifically, defendant wanted counsel to add claims of ineffective

assistance of appellate and trial counsel for failing to address (1) the use of a recorded statement

by Anthony Jamerson as substantive evidence at his trial and (2) double jeopardy. Defendant

alleged, after he requested the additional claims be added to his petition,

“[c]ounsel respond[ed] in [a] way that confused [him] and then

beg[a]n questioning [him] about payment. [Defendant] mailed

counsel[‘s] letter to family, to show family [that] counsel was

complaining about money and that they needed to make payments.

This is the reason said letter is not attach[ed] to this motion.

[Defendant] do[es] believe that he can attach said letter in [the]

future. After receiving [the] last letter from counsel about money

-5­ and why he didn’t raise ineffective [assistance] of direct appeal

counsel[,] [defendant] never heard [f]rom counsel again, until [the]

court dismiss[ed] [his] petition. [Defendant] wanted and had every

intention of adding other meritorious issues to his [p]etition[,]

including but not limited to the ones discussed in this motion.”

¶ 18 F. Withdrawal of Representation by Retained Counsel

¶ 19 On July 11, 2014, this court granted private counsel’s motion to withdraw as

counsel and appointed OSAD to represent defendant on appeal.

¶ 20 G. Trial Court’s Order Declining to Address Defendant’s Pro Se Motion to Reconsider

¶ 21 On July 16, 2014, the trial court entered an order indicating it would not consider

defendant’s pro se motion to reconsider because defendant’s counsel had previously filed a

notice of appeal.

¶ 22 H. Agreed Motion for Summary Remand

¶ 23 In February 2016, defendant filed an agreed motion for summary remand for

compliance with Illinois Supreme Court Rule 606(b) (eff. Dec. 11, 2014) to allow the trial court

to consider his timely pro se motion to reconsider, which this court granted.

¶ 24 I. Pro Se Supplemental Motion to Reconsider

¶ 25 In March 2016, defendant filed a pro se supplemental motion to reconsider.

Defendant alleged, in addition to the claims raised in his prior pro se motion to reconsider, his

postconviction counsel provided “ineffective” assistance by failing to allege claims of ineffective

assistance of appellate and trial counsel for failing to address (1) various evidentiary faults with

-6­ the trial testimony from a police officer, and (2) the failure to subpoena a key defense witness,

Amandrea McGill, or ask for a continuance.

¶ 26 J. Denial of Motion to Reconsider

¶ 27 In May 2016, the trial court entered an order denying defendant’s motion to

reconsider and its supplement. The trial court maintained the claim raised in defendant’s

postconviction petition was both (1) “procedurally barred as [it related to] matters of record that

could have been raised on direct appeal” and (2) meritless, as there was not a reasonable

probability of a different outcome had trial counsel filed a motion to reconsider after being

tendered the September 11, 2008, lab report. As to the additional claims raised in defendant’s pro

se motion to reconsider and its supplement, the court found the claims were forfeited as they

were not raised in the original petition, and defendant had not requested leave to file a successive

postconviction petition.

¶ 28 This appeal followed.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant argues the trial court erred in not considering the additional

claims contained in his pro se motion to reconsider and its supplement where the omission of

those claims from his original petition was the fault of postconviction counsel, he exercised due

diligence in bringing the new claims to the court’s attention, at least one of his claims raised in

his motion to reconsider states the gist of a meritorious claim, and he will be deprived of the

opportunity to raise those claims in a future proceeding. Defendant requests we remand the

matter and advance his petition to the second stage of postconviction proceedings.

¶ 31 From the outset, defendant acknowledges the trial court correctly noted it is

-7­ generally improper for a prisoner to raise new postconviction issues in a motion to reconsider.

See 725 ILCS 5/122-3 (West 2014) (“Any claim of substantial denial of constitutional rights not

raised in the original or an amended petition is [forfeited].”); People v. Vilces,

,

(2001) (finding the defendant forfeited an issue raised

for the first time in a motion to reconsider). However, defendant distinguishes the present matter

and suggests the trial court should have relaxed the forfeiture rule because (1) retained counsel

filed his initial postconviction petition, and (2) his motion to reconsider and its supplement

alleged he received “ineffective” assistance of postconviction counsel. Defendant maintains this

court should address his claim of “ineffective” assistance, which he now characterizes as

“unreasonable” assistance, based on counsel’s (1) failure to amend his petition with the claims he

requested and (2) presentation of a claim the trial court found to be barred by res judicata and

speculative. Defendant asserts, because at least one of his claims raised in his motion to

reconsider states the gist of a meritorious claim, summary dismissal was in error and this court

should remand for stage-two proceedings. Defendant specifically presents argument on appeal as

to why the additional claim relating to the officer’s testimony at trial—a claim first raised in the

motion to reconsider—states the gist of a meritorious claim. In summary, defendant proposes the

following rule:

“[W]here private counsel files an initial petition that is deemed

frivolous and patently without merit, and the petitioner files a

timely motion to reconsider claiming that counsel failed to include

numerous issues in the petition, the [forfeiture] rule should be

relaxed because it is incumbent for the trial court to determine if

-8­ counsel’s representation was reasonable by reviewing the

additional claims. If one of the additional claims has merit, the trial

court necessarily abuses its discretion by not allowing the petition

to proceed to stage two because counsel’s failure to include that

issue is unreasonable.”

¶ 32 In response, the State maintains the trial court properly concluded, following

section 122-3 of the Act (725 ILCS 5/122-3 (West 2014)) and the general rule highlighted in

Vilces, any claim not raised in defendant’s original postconviction petition is forfeited. The State

contends to allow defendant to distance himself from the general rule because his petition was

filed with the assistance of counsel would improperly grant more leverage to those prisoners who

have the ability to retain counsel, contradict the plain language of section 122-3, and usurp the

Act’s contemplation of only one postconviction petition unless leave to file a successive petition

is granted. The State maintains, if defendant wants to raise additional claims, he must do so in a

successive postconviction petition. The State further asserts, even if this court (1) elects to

address defendant’s claim of unreasonable assistance on appeal, it would be improper to analyze

a claim of unreasonable assistance based on new claims unrelated to the initial petition; and (2)

addresses defendant’s claim of unreasonable assistance based on the failure to raise a claim

relating to the officer’s testimony, it would fail as the underlying claim is meritless.

¶ 33 Defendant’s entire argument is premised on the presumption prisoners are entitled

to reasonable assistance at the first stage of postconviction proceedings. In his initial brief,

defendant asserted, citing People v. Cotto,

,

, the supreme

court “recently reiterated that private counsel must render reasonable assistance at the first stage

-9­ of post[ ]conviction proceedings.” The State’s brief did address defendant’s position and, in fact,

presents argument under the presumption a prisoner is entitled to reasonable assistance at the

first stage of postconviction proceedings.

¶ 34 Following the briefing in this case but before oral arguments, defendant’s counsel,

much to his credit, brought recent adverse authority, People v. Garcia-Rocha,

, to the attention of the State and this court on the issue of whether prisoners are entitled

to reasonable assistance at the first stage of postconviction proceedings. Both parties have now

had the opportunity to thoroughly address this issue during oral arguments. The State now

contends a prisoner is not entitled to reasonable assistance at the first stage of postconviction

proceedings. As the issue presents a question of law, our review is de novo. Cotto,

, ¶ 24,

.

¶ 35 We begin with the statutory language. Section 122-4 of the Act (725 ILCS 5/122­

4 (West 2014)) provides, where a postconviction petition is advanced to the second stage, a

prisoner is without means to procure counsel, and the prisoner requests counsel be appointed, the

trial court shall appoint counsel. This right of counsel arises only if the petition survives the first

stage of postconviction proceedings. The Act does not otherwise grant prisoners the right to

counsel at first-stage proceedings. See People v. Ligon,

,

(2010) (finding a defendant has no right to the appointment of counsel at the summary

dismissal stage of his postconviction proceeding).

¶ 36 Our supreme court has noted the right to counsel in postconviction proceedings is

“wholly statutory” (People v. Lander,

,

(2005)) and “a

matter of legislative grace and favor which may be altered by the legislature at will” (internal

- 10 ­ quotation marks omitted) (People v. Owens,

,

(1990)). “Because the right to counsel in post-conviction proceedings is derived from a statute

rather than the Constitution, post-conviction petitioners are guaranteed only the level of

assistance which that statute provides.”

In placing its gloss over the statutory language, our

supreme court has found, once a petition advances to second-stage proceedings, prisoners are

entitled to a reasonable level of assistance, regardless of whether counsel is retained or

appointed. Cotto,

,

; 725 ILCS 5/122-4 (West 2014).

Because the Act does not provide prisoners the right to counsel at the first stage of

postconviction proceedings, we find no statutory basis to grant prisoners who have the ability to

retain counsel the right to reasonable assistance at first-stage proceedings.

¶ 37 In 2009, the Second District was presented with the same issue. In People v.

Kegel,

,

(2009), the defendant appealed from the

summary dismissal of his postconviction petition, arguing he did not receive reasonable

assistance from the attorney he hired to prepare his petition. While the right to counsel, and thus

the right to reasonable assistance, never arose because his petition was summarily dismissed, the

defendant argued an attorney retained to prepare a postconviction petition should be held to the

same standard as an attorney appointed to assist a defendant whose pro se petition has passed

muster under section 122-2.1.

,

. The court rejected defendant’s

argument, finding it to be an attempt “to disengage the guarantee of reasonable assistance from

the underlying right to counsel such that the former can exist independently of the latter.”

It

found:

“[T]he rule that defendant champions would lead to disparate

- 11 ­ treatment among prisoners who are similarly situated except with

regard to the means to obtain counsel. A prisoner whose retained

attorney filed a fatally defective petition would be entitled to

reversal of the summary dismissal of the petition if the attorney did

not provide ‘reasonable assistance.’ In contrast, an indigent

defendant with no assistance of counsel who filed a petition

suffering the same defect would have no basis for reversal. The

General Assembly could not have intended such a result.”

(Emphasis omitted.)

The court further rejected defendant’s suggestion counsel was obligated to provide reasonable

assistance as a matter of professional ethics, finding any private ethical obligation did not expand

the scope of the government’s obligation under section 122-4 to guarantee a defendant is

properly assisted by counsel in postconviction proceedings.

,

-33. In

closing, the court noted its holding did not foreclose the defendant from raising his underlying

claim in a successive petition and declined to express any view on whether the quality of

postconviction counsel’s performance could establish cause or whether it resulted in any

prejudice.

,

. See also People v. Shipp,

, ¶ 24,

(finding “[n]either statute nor case law provide for a freestanding right to

reasonable assistance of counsel at first-stage postconviction proceedings”).

¶ 38 More recently, the Third District has followed suit in concluding a prisoner is not

entitled to reasonable assistance at the first stage of postconviction proceedings. In Garcia-

Rocha,

, the defendant appealed from the second-stage dismissal of

- 12 ­ his postconviction petition, arguing he received unreasonable assistance by his privately retained

postconviction counsel. The court initially noted it was unclear whether the defendant was

arguing counsel was unreasonable for failing to raise an issue in his initial petition, failing to

amend the petition at the second stage of proceedings, or both. Id. ¶ 26. To the extent the

defendant was raising a claim of unreasonable assistance based on counsel’s failure to include an

issue in his initial petition, the court rejected such an argument. Id. ¶¶ 27-34. The court found

“neither the legislature nor Illinois courts [have] recognized any right to counsel at the first stage

of postconviction proceedings,” and, citing Kegel, it echoed concerns that accepting the

defendant’s argument would lead to disparate treatment among prisoners similarly situated

except with regard to the means to obtain counsel. Id. ¶¶ 27-28. Justice McDade, in her partial

concurrence/dissent, disagreed with the majority finding. Id. ¶¶ 52-61 (McDade, J., concurring in

part and dissenting in part). She suggested a prisoner is entitled to reasonable assistance because,

“in essence, when [the] prisoner retains counsel to prepare the initial postconviction petition, the

first and second stages effectively merge and it is the job of retained counsel to both identify and

raise those issues that could rise to the level of constitutional claims and to put them in proper

form for the court’s consideration.” (Emphasis in original.) Id. ¶ 57.

¶ 39 Defendant asserts we should decline to follow our sister districts’ decisions in

Kegel and Garcia-Rocha as the supreme court in Cotto has provided express, binding authority

for the proposition a prisoner is entitled to reasonable assistance at the first stage of

postconviction proceedings. In Cotto,

,

, the defendant

appealed from the second-stage dismissal of his postconviction petition, arguing his privately

retained postconviction counsel failed to provide him with a reasonable level of assistance. The

- 13 ­ supreme court was tasked with deciding “if every postconviction petitioner represented by

counsel is entitled to a reasonable level of assistance from counsel after first-stage proceedings,

regardless of whether counsel was appointed or privately retained.” (Emphasis added.) Id. ¶ 1.

The court ultimately found:

“[T]he appellate court in this case erred when it concluded that

defendant was not entitled to reasonable assistance from his

retained counsel at second-stage proceedings. *** We hold that

there is no difference between appointed and privately retained

counsel in applying the reasonable level of assistance standard to

postconviction proceedings. Both retained and appointed counsel

must provide reasonable assistance to their clients after a petition

is advanced from first-stage proceedings.” (Emphases added.)

Id. ¶ 42.

Based on its characterization of the issue presented and ultimate holding, the supreme court was

not tasked with determining whether a prisoner is entitled to reasonable assistance at the first

stage of postconviction proceedings. However, in reaching its holding the court did make the

following comment: “This court has also required reasonable assistance from privately retained

postconviction counsel at the first and second stage of postconviction proceedings.” Id. ¶ 32. In

support of this comment, the court cited its prior decision in People v. Mitchell,

,

(2000), with a parenthetical indicating the court in that case reviewed

“retained counsel’s performance under the reasonable assistance standard.” Cotto,

,

.

- 14 ­ ¶ 40 Defendant maintains the supreme court’s comment in Cotto demonstrates he is

entitled to reasonable assistance at the first stage of postconviction proceedings. The Third

District addressed the supreme court’s comment in Garcia-Rocha. The Garcia-Rocha majority

distinguished Mitchell—the authority the supreme court relied upon in making such a

comment—as in that case the defendant was sentenced to death (Mitchell,

,

), and prisoners sentenced to death had a statutory right to the assistance of

appointed counsel at the first stage of postconviction proceedings (725 ILCS 5/122-2.1(a)(1)

(West 1992); People v. Brisbon,

,

(1995)). Garcia-

Rocha,

, ¶ 29. The majority found any right to reasonable assistance the

prisoner in Mitchell may have had at the first stage of proceedings did not apply to the defendant,

who was sentenced to a term of imprisonment and had no statutory right to counsel at the first

stage of proceedings. Id. The Garcia-Rocha dissent disagreed, finding the majority improperly

narrowed the supreme court’s comment where the supreme court itself did not make such a

distinction in its opinion. Id. ¶¶ 54-56 (McDade, J., concurring in part and dissenting in part).

¶ 41 We find the decisions of our sister districts to be well-reasoned: (1) neither the

Act nor case law indicates a prisoner sentenced to a term of imprisonment is entitled to

reasonable assistance at the first stage of postconviction proceedings, (2) to find such an

entitlement would require us to judicially disengage the guarantee of reasonable assistance from

the underlying right to counsel at second-stage proceedings so that the former can exist

independently of the latter, and (3) awarding such an entitlement would lead to disparate

treatment among prisoners similarly situated except with regard to the means to obtain counsel.

See Kegel,

,

; Garcia-Rocha, 2017 IL App (3d)

- 15 ­ 140754, ¶¶ 27-34. We further decline to find such an entitlement based on an unclear comment

by the supreme court in a case where (1) the court was not tasked with considering the issue; (2)

the comment relied on distinguishable precedent; and (3) the court cited, but did not reject, the

Second District’s holding in Kegel.

¶ 42 Defendant asserts requiring him to seek relief through a successive postconviction

petition, as the trial court suggested, is a severe penalty for counsel’s inadequate representation.

Defendant maintains the penalty is severe because he would be unable to satisfy the cause-and­

prejudice test. See generally People v. Smith,

,

; 725 ILCS 5/122­

1(f) (West 2014). Given the posture of this case, we decline to express any view on whether

defendant, who purportedly has letters between himself and counsel wherein he requests counsel

to raise certain meritorious claims in his postconviction petition prior to the trial court’s ruling on

the petition, may satisfy the cause-and-prejudice test if those letters and any supporting

documentation are filed as part of his motion for leave to file a successive postconviction

petition. See Kegel,

,

(declining to express any view on

whether the quality of postconviction counsel’s performance could establish cause or whether it

resulted in any prejudice).

¶ 43 Based on the statutory language, the persuasive authority from our sister districts,

and the absence of a clear ruling on this issue by the supreme court, we hold a prisoner is not

entitled to reasonable assistance at the first stage of postconviction proceedings. Defendant was

not entitled to reasonable assistance, and we reject defendant’s arguments grounded in such an

entitlement.

¶ 44 III. CONCLUSION

- 16 ­ ¶ 45 We affirm the trial court’s judgment. As part of our judgment, we award the State

its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West

2014).

¶ 46 Affirmed.

- 17 ­